McKinney v Police - [2022] NZSC 29

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 30/2021
[2021] NZSC 29

BETWEEN	MARK ANTHONY MCKINNEY Applicant
AND	NEW ZEALAND POLICE Respondent

Court:	O’Regan, Ellen France and Williams JJ
Counsel:	A J Haskett for Applicant R K Thomson for Respondent
Judgment:	25 March 2022

JUDGMENT OF THE COURT

The application for recall of this Court’s judgment of 21 June 2021 (McKinney v New Zealand Police [2021] NZSC 68) is dismissed.

____________________________________________________________________

REASONS

In a judgment delivered on 21 June 2021, this Court dismissed Mr McKinney’s application for leave to bring a leapfrog appeal against a decision of the High Court.[1] In the latter decision, the High Court allowed an appeal by the Police against a decision of the District Court dismissing a charge against Mr McKinney for driving a vehicle while the proportion of alcohol in his breath exceeded 400 mcg of alcohol per litre of breath.[2] The High Court Judge had followed the decision of the Court of Appeal in Solicitor‑General’s Reference (No 1 of 2020), and the objective of Mr McKinney’s appeal was, in effect, to challenge the correctness of that decision of the Court of Appeal.[3]
[1]McKinney v New Zealand Police [2021] NZSC 68 [SC leave judgment].
[2]New Zealand Police v McKinney [2021] NZHC 330, allowing the appeal against the District Court judgment in New Zealand Police v McKinney [2020] NZDC 20169.
[3]Re Solicitor-General’s Reference (No 1 of 2020) [2020] NZCA 563.
The applicant argues that the leave judgment should be recalled and reversed, relying on this Court’s decision in Uhrle v R.[4] He argues that there are three “very special reasons” that justice requires the judgment to be recalled.
[4]Uhrle v R [2020] NZSC 62, [2020] 1 NZLR 286 at [29].
Counsel for Mr McKinney filed a prolix (56 page) submission in support of the application for recall. In that submission, he argued that the three very special reasons why this Court’s leave decision should be recalled were:
(a)the point at issue involved matters of the highest general and public importance, which were understated in the leave decision;
(b)the leave decision misstated the applicant’s legal arguments; and
(c)the Court’s reasons for declining leave were inadequate.
We deal with each in turn.
The applicant makes a number of arguments as to the public importance of the issue that were not made in his submission in support of his application for leave. However, it was common ground that a matter of public importance arose and this was acknowledged in the leave judgment.[5] This is not, therefore, a very special reason for recalling the judgment.
[5]SC leave judgment, above n 1, at [11].
The second point is that this Court is said to have misstated the applicant’s legal argument. In fact the Court well understood the applicant’s argument, but under s 77 of the Senior Courts Act 2016, the Court’s reasons for refusing to grant leave may be stated briefly and in general…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NZSC 29
Decision Date: 25 March 2022

CaseChat Overview and Summary

McKinney, the applicant, sought to appeal against the decision of the High Court which allowed an appeal by the Police against a decision of the District Court dismissing a charge against him for driving a vehicle while the proportion of alcohol in his breath exceeded 400 mcg of alcohol per litre of breath. The High Court had followed the Court of Appeal’s decision in the Solicitor-General’s Reference (No 1 of 2020). McKinney’s objective in appealing was to challenge the correctness of that decision. McKinney’s initial application for leave to bring a leapfrog appeal was dismissed by the Supreme Court. McKinney now sought a recall of the Supreme Court’s judgment dismissing his application for leave to appeal. McKinney argued that the leave judgment should be recalled and reversed because there were three "very special reasons" why justice required the judgment to be recalled. McKinney’s arguments were that the point at issue involved matters of the highest general and public importance, which were understated in the leave decision; the leave decision misstated McKinney’s legal arguments; and the Court’s reasons for declining leave were inadequate. The Supreme Court dismissed McKinney’s application for recall of the leave judgment. McKinney had not put forward any new arguments or evidence to support his application for recall. The points advanced in support of the application for recall were essentially a relitigation of points determined by the Court when refusing leave. The Supreme Court found that McKinney had not provided any "very special reasons" to recall the judgment dismissing his application for leave to appeal. McKinney’s application for recall of the leave judgment was dismissed.

Orders